Joan RUDOLPH, Appellant, v. WAGNER ELECTRIC CORPORATION, Appellee.
No. 78-1193.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 15, 1978. Decided Nov. 8, 1978.
Rehearing and Rehearing En Banc Denied Dec. 5, 1978.
586 F.2d 90
In trying a case of this kind, a federal district judge is under an independent obligation, at least to a reasonable extent, to see to it that the landowner‘s claim is submitted to the jury on competent evidence, and with the jury being given proper legal guidelines for decision.
That course was not followed in this case, and the judgment of the district court is reversed and the cause remanded for a new trial.
Hanson, Senior District Judge, sitting by designation, filed concurring opinion.
Lisa S. Van Amburg, Anderson, Everett, Sedey & Van Amburg, St. Louis, Mo., for appellant.
Michael J. Tannler, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., argued, for appellee; D. J. Sullivan and Timothy L. Stalnaker, St. Louis, Mo., on brief.
Before HEANEY and STEPHENSON, Circuit Judges, and HANSON,* Senior District Judge.
STEPHENSON, Circuit Judge.
Appellant Joan Rudolph brought a Title VII sex discrimination claim, Civil Rights Act of 1964, as amended,
Rudolph was dismissed from her job with Wagner in February 1973 for “insufficient productivity.” Pursuant to the labor contract entered into between Wagner and
Rudolph claims on appeal that the arbitrator‘s decision, issued pursuant to the contractual labor agreement, upholding the discharge, is the “occurrence” for purposes of
Rudolph alleges her fact situation can be distinguished from Electrical Workers primarily because Rudolph considered the arbitration decision to be the final disposition, and thus the “occurrence,” and she did not
Throughout the proceedings both in the District Court and in the Court of Appeals, both sides appear to have assumed, as did the courts, that the date of discharge was October 25, 1971 [herein February 1973]. There being no indication that either party viewed the October 25 [herein February 1973] discharge as anything other than “final,” there is certainly no reason for us to now torture this mutual understanding by accepting the bare assertions to the contrary raised by petitioners for the first time before this Court.
Id. at 235, 97 S.Ct. at 446 (footnotes omitted).
The Supreme Court did state that the parties may have a contractual understanding that confirmation from higher management of a recommendation for discharge would be considered as the relevant statutory “occurrence,” but that is clearly not the case here.3 It was understood by Rudolph that she was fired. The labor agreement only provided for a contractual appeal route. It did not render her discharge provisional.4 Rudolph was dismissed from her employment in February 1973, and that was the occurrence for purposes of the Title VII limitations period.
Rudolph also makes the allegation that Wagner failed to remedy the discharge during the grievance and arbitration process. This “continuing violation” claim is without merit, as it is simply a restatement of Rudolph‘s allegation that the February 1973 discharge was not the occurrence for Title VII purposes. “Termination of employment either through discharge or resignation is not a ‘continuing’ violation. It puts at rest the employment discrimination because the individual is no longer an employee.” Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975).
Rudolph‘s second claim on appeal is that even if the February 1973 discharge was the occurrence for purposes of Title VII, pursuing her grievance in accord with the labor contract tolled the time period for filing with the EEOC. Rudolph argues that Electrical Workers, which held to the contrary, should not be applied retroactively to her case.
The standards to be considered in regard to retroactivity were articulated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The major factors are whether the court ruling in question was of first impression or “clearly foreshadowed,” whether the retroactivity will further or retard the purpose of the rule, and whether inequities will result by retroactive application of the rule.5
At the time of Rudolph‘s discharge, several courts had dealt directly with the tolling issue herein, and had indicated that the grievance procedure tolls the Title VII filing period.6 The primary case holding this was Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970). However, the only cases Rudolph cites that have occurred in courts within this circuit and upon which her attorney might have relied in deciding that the grievance system would toll the limitations period, are Richard v. McDonnell Douglas Corp., 469 F.2d 1249 (8th Cir. 1972), and Lowry v. Whitaker Cable Corp., 348 F.Supp. 202 (W.D.Mo.1972), aff‘d, 472 F.2d 1210 (8th Cir. 1973). Both of these decisions dealt with the question of whether initially filing a complaint with the EEOC served to toll the running of the statutory time period while state proceedings were utilized. This is a sufficiently different issue; it does not provide the “clear past precedent” that Chevron mentions.
At the time of Rudolph‘s discharge, the most Rudolph can claim is that she did not know from existing precedent in this circuit whether the grievance procedure would toll the time period for filing with the EEOC.
Even more importantly, under the facts of this case, is the fact that even when one considers the Culpepper line of cases, none of the cases Rudolph relies upon contain language that would have led her to believe that she was prevented from filing her sex discrimination claim with the EEOC. She does not allege that she was under this impression at the time of her discharge.7 The Electrical Workers Court also discusses this fact in its opinion:
In no way is this a situation in which a party has “been prevented from asserting” his or her rights, Burnett v. New York Central R. Co., 380 U.S. [424], at 429 [85 S.Ct. 1050, 13 L.Ed.2d 941]. There is no assertion that [plaintiff] was “prevented” from filing a charge with the EEOC within [the statutory time period]; indeed, it is conceded and even urged that
International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., supra, 429 U.S. at 237 n.10, 97 S.Ct. at 447. See generally id. at 237-38, 97 S.Ct. 441.
There were no cases that instructed Rudolph not to file her EEOC complaint at that time, and no cases within this circuit indicating that the grievance system tolls the EEOC time period for filing.
The second part of the Chevron test is deciding whether retroactive application of Electrical Workers will further or retard the purpose of the rule announced in Electrical Workers. For example, in Chevron, the case in question included the ruling that state law rather than admiralty law applied in an action on a personal injury occurring on a fixed structure on the Outer Continental Shelf. “A primary purpose underlying the absorption of state law as federal law,” stated the Chevron Court, “was to aid injured employees by affording them comprehensive and familiar remedies.” Chevron Oil Co. v. Huson, supra, 404 U.S. at 107-08, 92 S.Ct. at 356. Because retroactive application of the rule would have imposed a state statute of limitations and consequently deprived the plaintiff of any remedy, retroactive application would not have furthered the purpose of the new rule.
In this case, the Supreme Court held that the grievance procedure will not toll the Title VII limitations filing period. The purpose of the Electrical Workers decision is to further the legislative intent of the Act: “[T]he contractual rights under a collective-bargaining agreement and the statutory right provided by Congress under Title VII ‘have legally independent origins and are equally available to the aggrieved employee[.]‘” International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., supra, 429 U.S. at 236, 97 S.Ct. at 447, quoting from Alexander v. Gardner-Denver Co., supra, 415 U.S. at 52, 94 S.Ct. 1011: “Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.” Id. 429 U.S. at 236 n.8, 97 S.Ct. at 447, quoting from Alexander v. Gardner-Denver Co., supra, 415 U.S. at 48-49, 94 S.Ct. 1011. Thus retroactive application is not inconsistent with the purpose of the Electrical Workers’ rule.
This, of course, leads us to the third of the Chevron standards—the equities involved.
The most obvious inequity with which Rudolph would be left, should this court give retroactive effect to Electrical Workers, is that she would not be able to pursue her sex discrimination claim under Title VII. This is admittedly contrary to the liberal and broad interpretation meant to be given remedial legislation such as Title VII. This same type of inequity resulted in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), inasmuch as plaintiff therein was barred from filing a section 1981 claim when the Court ruled that filing with the EEOC did not toll the 1981 limitations period. There the Supreme Court stated:
We note expressly how little is at stake here. We are not really concerned with the broad question whether these respondents can be compelled to conform their practices to the nationally mandated policy of equal employment opportunity. If the respondents, or any of them, presently are actually engaged in such conduct, there necessarily will be claimants who are in a position now either to file a charge under Title VII or to sue under § 1981. The question in this case is only whether this particular petitioner has waited so long that he has forfeited his right to assert his § 1981 claim in federal court.
Id. at 467 n.13, 95 S.Ct. at 1723.
The Johnson language applies to this situation also. We are simply determining whether Rudolph waited too long before filing her Title VII claim. Our decision will deprive her of her Title VII remedy. Yet she did elect to pursue her contractual remedy—a remedy distinct from Title VII provisions—apparently at which time her dis-
By not applying the Electrical Workers rule retroactively we would also defeat the purpose of the limitations period, which is to give notice to the employer. Even though Wagner acknowledges that Rudolph raised the sex discrimination charges in the grievance procedure, this did not give notice that she planned to pursue her complaint in a Title VII statutory claim. The grievance procedure is an independent remedy; a sex discrimination argument raised in a grievance procedure is not tantamount to the notice required by the Title VII period of limitations.
There is obviously some inequity inherent in whatever choice we make. However, the inequity of leaving Rudolph unable to pursue her Title VII remedy is not so great when one considers that she was never prevented from filing her claim in a timely fashion with the EEOC. Thus, we find the Chevron standards to be better served by applying the Electrical Workers rule retroactively.
We affirm the district court.
HANSON, Senior District Judge, concurring.
I concur in Judge Stephenson‘s analysis as it relates to when the alleged unlawful employment practice “occurred” within the meaning of the statute. My purpose in concurring separately is to stress that in rejecting Rudolph‘s other argument that International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), should be applied nonretroactively (or prospectively only), I have felt compelled to follow inferences gained from the rationale employed by the Supreme Court in Electrical Workers, and have not predicated my conclusion on an independent review of the standards articulated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).
Though the Supreme Court was not faced with the retroactivity question in Electrical Workers, I think the clear implication in the language and reasoning used by the Supreme Court in concluding that pursuit of a contractual grievance procedure does not toll Title VII time limitations suggests that its holding should be given retroactive effect. The Supreme Court‘s stress on the clarity of legislative history indicating that Title VII was “designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination,” Electrical Workers, supra 429 U.S. at 236 n.8, 97 S.Ct. at 447, quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and its observation that Alexander, supra, and Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), “virtually foreclosed” any argument in favor of tolling indicates to me that the
Only because I feel bound by what I can infer from the parallelism between the Electrical Workers opinion and the Chevron standards do I concur in the conclusion that the holding in Electrical Workers should be applied retroactively.
STEPHENSON
CIRCUIT JUDGE
Notes
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed * * *. Second, it has been stressed that “we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” * * * Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” [Citations omitted.]